Abstract

The Act of 16 June 2009 amending the Land and Mortgage Register Act and certain other acts came into force as of 20_February 2011. The major changes that have been introduced include: (1) elimination of the diversification into the ordinary and capped mortgage related to the adoption of a uniform mortgage based on the construction of hitherto capped mortgage; (2) adoption of a rule that contractual mortgage may secure a single or multiple claims, both existing and future ones, of one or more creditors (Art. 68.1, Art. 681.1 and Art. 682.1 of the LMRA); (3) easing of the principle of the accessorial nature of a_mortgage; (4) introduction of the institution of a mortgage administrator. The latter of those changes has been modelled on the earlier adopted institution of a registered pledge administrator (Art. 4 of the Registered Pledge and Pledge Register Act of 6 December 1996).

Until 20 February 2001, the provisions of the LMRA did not allow for securing more than one claim with an ordinary mortgage. The amended provisions of the LMRA make it possible to establish a mortgage securing “multiple claims” (at least two) in two situations: (1) when the same creditor is entitled to those claims, which may arise under “different legal relationships” (Art._681.1 of the LMRA ); (2) when multiple entities are entitled to the claims, which are used for “financing the same undertaking” (Art. 682.1 of the LMRA ). In the first instance, it is not possible to establish a mortgage administrator, just like it is not possible to establish a registered pledge administrator in a similar situation regulated by the provisions of Art. 6 of the Registered Pledge Act. In the latter case, the Act provides for the “appointment” of a land and mortgage register administrator, while at the same time it allows that this role be played by “one of the creditors or a third party”. The substance of the function performed by mortgage administrator and registered pledge administrator is defined by counterpart provisions of Art. 682.3 of the Land and Mortgage Register Act, Art. 7.1a of the Bond Issue Act and Art. 4.1 of the Registered Pledge Act. Those provisions stipulate that the mortgage or registered pledge administrator “exercises the rights and fulfils the duties of the mortgagee (pledgee) in his own name, but on the account of the creditors (bond holders), whose claims are secured”. The exclusive legitimacy of the registered pledge administrator and the mortgage administrator to substitute for all creditors whose claims are secured covers extends to the area regulated by the substantive law as well as the area regulated by the law of procedure.

The bankruptcy and reorganization law directly regulates only one of the aspects of the functioning of the registered pledge or mortgage administrator in bankruptcy proceedings, stipulating in Art. 63.1.3 that: “the part of the amount obtained from realization of the registered pledge or mortgage, which in accordance with the administrator appointment agreement other creditors are entitled to, shall not be included in the bankruptcy estate if the bankrupt acted as a registered pledge or mortgage administrator”. If the bankrupt performs the function of a registered pledge or mortgage administrator as a third party, he is not deprived of the right to do so after the “liquidation” bankruptcy has been declared, since the claims with respect to which the bankrupt exercises the rights and performs the duties of a pledgee or a mortgagee are not part of his assets, but the assets of individual creditors.